Three Radio Orders Forthcoming From FCC
Three forthcoming FCC radio orders likely will allow FM stations to increase digital power levels, set up a priority for some tribes to get new outlets, and declare winners for 60 licensees from a 2003 application window, said commission and industry officials. Media Bureau draft orders addressing an April rulemaking notice on rural radio services (CD April 22 p12) and the order on the auction both circulated in the past several weeks, they said. Neither is due for a quick vote, but they're not expected to be controversial among FCC members, officials said.
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The bureau appears to be nearing completion of another order, in the works for some time, that would allow an increase in HD Radio power levels, said a commission official and a communications attorney. The order likely will be done by the bureau using its authority under in-band-on-channel radio operation rules and won’t be subject to a commissioner vote, said the agency official. The bureau has indicated that action under delegated authority is its plan, but that could change, the official said. Bureau officials declined to comment on the three radio items.
A draft order circulated Dec. 11 would award 60 FM licenses to non-commercial, educational broadcasters who sought them in a 2003 filing window, commission officials said. About 3,600 applications were received in all, they said. The draft deals with a subset of that total which are mutually exclusive applications that overlap with each other and whose filers couldn’t strike deals among themselves to resolve the conflicts, they said. Winners for each license are established using a point system, with criteria including whether the station-seeker is an established local applicant, has diversity of ownership, is part of a statewide educational programming network and has the best proposal on technical merits, an official said. The order could pave the way for how to deal with future overlapping non-commercial educational applications, another official said.
Native-American tribes would be among beneficiaries of the rural radio item circulated Dec. 8 that gives them and some other groups priority in seeking stations if they already qualify for them under current commission rules, agency officials said. Alaskan native tribes also would get priority for both commercial and non-commercial applications, one official said. Tribal operation of stations would help areas underserved by radio stations and wouldn’t violate the Supreme Court’s Adarand v. Pena decision limiting government set-asides for certain racial groups, the order said, according to FCC officials. The order cited the high court’s Morton v. Mancari ruling allowing preferences for some groups, and the tribal preference would operate under Section 307(b) of the Communications Act, they said.
That 1974 decision allows government preferences for radio stations because membership in tribes is considered a political and not racial designation, said broadcast lawyer John Crigler of Garvey Schubert, representing Native Public Media in the rural-radio FCC proceeding. “I think that principle will stand that the FCC can recognize some special interest in having entities serve tribal lands,” said Crigler, who has not seen a copy of the draft. “The commission wants to recognize a special interest and public benefit that flows from serving tribal lands,” he said. The preference won’t make new radio licenses “a slam dunk” for tribes, he said, because they still must meet eligibility criteria.